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BECAUSE THE OFFENSE TO WHICH DEFENDANT PLED GUILTY (ATTEMPTED CRIMINAL POSSESSION OF A WEAPON THIRD) WAS NOT A LESSER INCLUDED OFFENSE OF ANY OFFENSE CHARGED IN THE INDICTMENT, IT IS NOT CLASSIFIED AS A VIOLENT FELONY; DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND VIOLENT FELONY OFFENDER (SECOND DEPT). ​

The Second Department determined defendant should not have been sentenced as a second violent felony offender. Defendant pled guilty to attempted criminal possession of a weapon third, which was not a lesser included offense of any of the offenses charged in the indictment. Therefore the attempted criminal possession of a weapon third can not be classified as a violent felony:

Penal Law § 70.02 defines a class E violent felony offense, in pertinent part, as “an attempt to commit any of the felonies of criminal possession of a weapon in the third degree as defined in subdivision five, six, seven or eight of section 265.02 as a lesser included offense of that section as defined in section 220.20 of the criminal procedure law” … in turn defines a ‘lesser included offense’ as one where the defendant pleads ‘to an offense of lesser grade than one charged in a count of an indictment'” … . Thus, a plea of guilty to attempted criminal possession of a weapon in the third degree “constitutes a violent felony offense only when the defendant has been initially charged with criminal possession of a weapon in the third degree and pleads guilty to the attempted crime as a lesser included offense” … . Here, the defendant pleaded guilty to attempted criminal possession of a weapon in the third degree as an added count to the indictment, which did not charge him with the completed crime of criminal possession of a weapon in the third degree. Under the circumstances, the Supreme Court should not have sentenced the defendant as a violent felony offender … . People v Nyack, 2023 NY Slip Op 01532, Second Dept 3-22-23

Practice Point: Here defendant pled guilty to attempted criminal possession of a weapon third. Because that offense was not a lesser included offense of any offense charged in the indictment, it is not classified as a violent felony. Therefore defendant should not have been sentenced as a second violent felony offender.

 

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